Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme

Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme.

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Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme

“I am a lonely visitor. I came too late to cause a stir, Though I campaigned all my life
towards that goal. ” Campaigner by Neil Young

donald and neil

The race to win the Republican Presidential nomination, already awash with candidates, got weird this week when Donald Trump threw his hat into the ring. Weird not just because of The Donald’s trademarked boardroom bravado as he took on the competition. The Donald expected jibes from members of the press who he labeled as “losers,” and from the likes of “Jeb!,” Marco, Rand, Huckabee, and the rest of the GOP hopefuls. But his first opponent hails from North of the Border with “dream comfort memory to spare,” Yes, before Mr. Trump could begin proving his Presidential mettle, he had to tackle Neil Young.

The confrontation erupted over Trump’s choice of theme song–Neil’s iconic anthem “Rockin’ In The Free World.” The Donald and his minions no doubt chose “RITFW” for its rousing refrain “Keep on rockin’ in the free world.” No one in Trump’s camp apparently ever listened to the rest of Neil’s song–the parts that deal with homelessness, addiction, and environmental destruction. News flash to The Donald–“Rockin’ In The Free World” is an indictment of the 1980’s, the song steeped in the anguish of “people sleeping in their shoes,” who “hate their li[ves},” of “kids who will never go to school, never get to fall in love never get to be cool.”

Never one to let irony obscure good PR, Trump marched to the podium with RITFW’s chorus blaring behind him. (The Donald no doubt doused his mane with an extra shellacking of aerosol to avoid being blown away as Neil’s feedback-drenched guitar roared like a hurricane.)

Before the 24 hour news cycle had run its course, Trump’s camp heard from Mr. Young’s. Neil was not amused. First, Young issued a short statement saying he did not authorize Trump’s use of the song.

Now, the legalities of this situation are anything but simple. Multiple layers of rights are involved. Copyright protects the song. Trump apparently accounted for that, obtaining a public performance license that covered “RITFW.” (These are available from rights organizations like ASCAP and BMI, and generally cover vast catalogs of songs.) But copyright is only part of the puzzle. Artists and other celebrities may have a “right of publicity” under state laws, which gives them control over the use of their image, likeness, or persona. And U.S. and state trademark laws prohibit false endorsements. So while Trump may have ponied up for a copyright license, Young still had two other legal weapons at his disposal–ones that went to the fundamental issue of whether an artist can control how, when, and where his or her image and reputation can be used by someone else for commercial or political advantage.

The next day brought more introspective commentary from Neil Young. An outspoken performer who has penned his share of political protest songs and has lent his name and talents to many political causes, Neil Young was especially miffed to have one of his signature hits appropriated by a politician without his permission:

“Music is a universal language. So I am glad that so many people with varying beliefs get enjoyment from my music, even if they don’t share my beliefs. “But had I been asked to allow my music to be used for a candidate, I would have said no.” wrote Mr. Young.

This is not the first time a politician has clashed with a musician. Bruce Springsteen (Born In the USA), Jackson Browne (Running On Empty), and Tom Petty (American Girl) are just some of the singer/songwriters who have spoken up in protest when a candidate used one of their songs as a campaign anthem. In almost every case, when a musician and politician go eyeball to eyeball, the politician blinks. George W. Bush in fact relented when called upon by Tom Petty to cease and desist using “I Won’t Back Down.” Now there’s irony that both sides of the aisle can appreciate.

Quote of the Day: “Politics has become so expensive that it takes a lot of money even to be defeated.” Will Rogers

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INTA The Woods

“And I know things now. Many valuable things that I hadn’t known before.” I Know Things Now, from the musical Into The Woods. Music and lyrics by Stephen Sondheim.
Going to INTA, the International Trademark Association’s annual meeting, sometimes feels like being in a fractured fairy tale. At first glance, it seems exciting and glamorous. Huge convention. Almost 10,000 attendees. The cream of the trademark bar. International crowd, well-heeled and elegant. Prime locations like San Diego (this year’s destination), Hong Kong, Seattle, Berlin. Dinners, parties, and countless small encounters with clients, colleagues, and even the competition. Four or five days away from the daily grind, yet thrust into a new normal of late night soirees followed by red-eyed early morning meetings and the desperate search for a strong cup of Joe. The pace is fast, the stakes are high, and, as one quickly discovers, the glamour quickly fades into a reality more akin to Mad Men if not Mad Max. To borrow a phrase from another film that simmers with anxiety and terror, INTA is “No Country For Old Men.”

So why do we go? Why subject our bodies and psyches to such abuse? Because  humans–even trademark lawyers–thrive on challenges. Optimism courses through our veins. And our memories are mercifully short. Last year’s fiasco of a taxi queue that made you miss a key client meeting and lose out on a big case? Ancient history. This year will be different. A triumph. Like Caesar returning to Rome after conquering Gaul, we’ll exude confidence and savvy. And this May, after this INTA, we’ll live happily ever after. Until next May, when dismay begins to rise in our gullets once again as we set off to write the next chapter in our sometimes grim, never dull, and always promising INTA fairy tale.

QUOTE OF THE DAY: “Experience is the teacher of all things.” Julius Caesar

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Beer TM Today, Gone Tommorow: IPA Spat Goes Flat

“The room was humming harder, As the ceiling flew away, When we called out for another drink, The waiter brought a tray.” A Whiter Shade of Pale by Keith Reid, Gary Brooker (recorded by Procol Harum)

Surprise turned to Schadenfreude last week in trademark land when micro-brewer Lagunitas sued micro-legend Sierra Nevada for trademark infringement. The mark at issue? IPA–a common acronym for the style of beer called “India Pale Ale.” For years, Lagunitas’s IPA packages featured the letters IPA in large, highly stylized script. And Lagunitas saw red when Sierra Nevada changed the packages for its IPA to put those letters front and center:

beer

Scores of brewers offer up their takes on this hoppy variety of pale ale. And many call it “IPA.” So the odds that any one company could snag “IPA” as a trademark would seem long at best–not the makings of a good bar bet. But those long odds did not deter Lagunitas. In its lawsuit, the company focused on style, not substance. According to Lagunitas’s complaint in Federal court, the letters IPA weren’t the issue. Sierra Nevada’s offense was copying the large-letter format and style of Lagunitas’s IPA logo.

But in this era where microbreweries are giving the beer establishment a run for its money and craft beer isn’t just for hipsters anymore, the nuances of trademark law sometimes can get lost on the blogosphere. Rather than stirring up sympathy, the lawsuit sparked a brew-haha of criticism, with Twitter and other social media sites overflowing with outrage over the idea that one brewer could monopolize IPA. So even though that wasn’t Lagunitas’s aim, the brewer responded to the backlash with contrition reminiscent of a morning-after dose of reality. In a Twitter post, owner Tony Magee wrote: “Today, I was seriously schooled . . . Tomorrow morning we’ll drop the infringement suit.[and] get back to answering other questions.”

So Lagunitaas learned a valuable lesson. When it comes to IP rights for IPA, size apparently doesn’t matter.

QUOTE OF THE DAY: “I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts, and beer.” Abraham Lincoln

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Turtles to Satellite Radio: Get Sirius About Pre 72 Public Performance Royalties

“Got a idea tell you what let’s do
Let’s go out to that place on the Turtle Bayou
We’ll maybe get lucky, maybe get shot
It couldn’t be half of the trouble I got” Turtle Bayou by James McMurtry

You remember the Turtles? The mid ’60s group best known for the hit song “Happy Together?” The semi-parody love song that ended with the line “So Happy Together. How is the weather?” Not exactly the type of sheer profundity that propelled Lennon, McCartney, Dylan, and Paul Simon into Rock and Roll immortality. And yet, when it comes to the music of pre ’72 AM radio, the cornucopia of rock, soul, pop, psychedelic, country, and easy listening that all managed to coexist on stations such as WABC in New York and WFIL in Philly, the Turtles just may go down in history–not for their music, per se, but for their persistence in pursuing their legal rights.

It all has to do with the interplay between Federal Copyright law and state protection. In general, where Copyright is concerned, Federal law trumps state law under a doctrine called “preemption.” Simply but, when Congress passes a law to implement a constitutional right, like copyright or patents, the states generally can’t step in with laws of their own–otherwise, there could be overlap, inconsistencies, and confusion. But what about areas where Congress has chosen not to act? One of those areas concerns so-called “public performance rights” for songs recorded before 1972. Under current Federal Copyright law, when a satellite radio station plays a song recorded after 1972, the station pays royalties to the composer and to the performer. The latter royalty is called the “public performance right.” But this performance right applies only to songs recorded after 1972. Essentially, satellite radio gets to play pre-72 recording for free, according to Federal Law.

Many musicians with hit songs from before MTV object to this free-pass for old recordings. They claim that it robs them of income if not livelihoods. Facing the music, several states have passed laws to “correct” the situation. Not coincidentally, the biggest states to do this–New York, California, FLorida–are where many disgruntled makers of Golden Oldies live and work today.

Sirius satellite radio has been fighting these state laws; and the band that has been their defender is not the Beatles, the Rolling Stones, The Who, or any other giants of the Woodstock era. No, it’s the Turtles who have come out of music history’s shell to press the case for pre ’72 royalties under state law.

And like that mythical contest that pit a speedy and cocky frontrunner against a slow but steady underdog, the Turtles have been winning the race. Just last week a Federal Court in New York affirmed a ruling that the satellite radio must pay the tab for pre ’72 public performance royalties. Judges in California have reached the same conclusion, and a Florida court is expected to rule on the issue soon.

So when it comes to listing the most influential animal-themed bands of the 20th Century, the Turtles may be an afterthought after BYRDS, ANIMALS, EAGLES, CRICKETS, and BEATLES; but all of these groups have either disbanded, been decimated by the ravages of time, or are infamously acrimonious. With their legal legacy, however, the TURTLES appear to be still Happy Together.

QUOTE OF THE DAY: “One of the nice things about a favorite pop song is that it’s an unconditional truce on judgment and musical snobbery. You like the song because you just do, and there need not be any further criticism.” Henry Rollins

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Legal Eagle or Fairly Mocked Bird? Don Henley Wings Into Court

“He’s a tortured artist. Used to be in the Eagles. Now he whines. Like a wounded beagle. Poet of despair! Pumped up with hot air!’ Don Henley Must Die, by Mojo Nixon

Ask a serious music fan about Eagles and their singer Don Henley, and you’re likely to hear sentiments not so different from Mojo Nixon’s satiric verses in “Don Henley Must Die.” Sure, Mr. Henley has been outspoken in support of artists’ rights, testifying before Congress on a symphony of issues relating to recording industry practices. And his positions on environmental issues, reflected in his stewardship of the Waldon Woods Project, have been pristine.
So why do music fans like me–whose tastes swing between the Eagle’s forerunners and many of the band’s progeny–cringe at the thought of Don Henley–the man and his music? Why, when we hear him crooning on “The Boys of Summer,” do we immediately pray for an early frost; for the top to go up and wipers turned on in old Don’s California idyll? Could it be that the maitre d’ at the Hotel California, the head honcho in that band of Desperadoes, has seen one too many Tequila Sunrises and simply lost his sense of humor?
Judging from Mr. Henley’s latest legal foray, it does not take a 12-part podcast from NPR to conclude that when it comes to his “Right of Publicity” Don Henley has checked his funnybone at the courthouse door.
Here’s the story. For years, menswear companies from J. Crew to Joe A. Bank have sold long-sleeved, cotton shirts with crew collars and three or four button fronts. These casual shirts are called Henleys–taking their name from the rarefied world of rowing and regattas on the Thames near Oxford. And for decades, if not centuries, “to don” has meant the act of pulling on a uniform–such as a jersey and, yes, a Henley tee. So Englishmen may have been donning Henleys since Henry VIII serenaded Ann Boleyn with “Welcome to the Hotel Tower of London, such a lonely place.”
Henry, being king of court, could dispense bad tunes and swift justice however he wished when spurned by a wife or rival.
Don Henley, however, must resort to the U.S. courts to protect his name. And that’s what he did when he took offense at an advertisement by U.S. clothier Duluth Trading, a company known for edgy, sometimes cheeky ads for traditional clothing geared to tradesman and outdoor enthusiasts featuring Giant Angry Beavers, Groping Grizzlies, and Unruly Bushes. One ad, for Duluth’s “Long-Tail Tee,” even proposes a “Cure for Plumbers’ Butt.” Cheeky indeed.
But when, in advertising its long-sleeve button pullover shirt, Duluth urged customers to “don a Henley, take it easy,” the Eagles singer/drummer didn’t appreciate the humor. Instead of laughing with Duluth he sued Duluth–in California, where else? Henley alleges in his complaint that Duluth’s ad for Henley shirts deliberately invokes Mr. Henley’s name and his association with the Eagles, and are aimed at “exploiting the celebrity of Mr. Henley and the Eagles’ hit record.” Mr. Henley’s complaint also alleges that consumers, not Henley, are the real victims: “Large numbers of consumers . . . will unquestionably believe that Mr. Henley is associated with and/or has endorsed {Duluth]and its products . . .”
Duluth, for its part, seems to be taking things in stride, as its whimsical ads might suggest. “The advertisement is obviously a joke (something we presume not even Mr. Henley disputes),” Duluth wrote in asking the court to toss Henley’s suit. “It is self-evident that the use that was made of Mr. Henley’s name was a joke intended to highlight the coincidence that [he] shares his last name with a ubiquitous casual shirt and that his first name means ‘to wear.'”
So we have Duluth’s claims of Freedom of Speech and Expression lined up against Mr. Henley’s right to protect his name and image from being used to confuse or deceive consumers and his further right to control who may or may not exploit his name for commercial gain. There’s just enough traction on both sides that the court may have less than a peaceful, easy feeling in deciding who’s right. The outcome likely will turn on whether the court finds Duluth’s ad “transformative”–that is, did the parodist or satirist infuse the work with enough creativity and original expression to merit the First Amendment’s protection. In other words, will the judge or jury get the joke, and think the joke is clever enough to side with Duluth? Or will they find that the joke is just a tepid excuse for identity theft. Cases like this usually settle, so we won’t likely know how and where the California court would draw the line. But we can safely say, whatever the outcome, that Duluth Trading is a far cry from all those “Desperadoes” Henley and his compadres glorified through their music. Perhaps the irony is lost on Henley; the man who entreated notorious thieves and killers Frank and Jesse James to “keep on riding, riding, riding,” has a short fuse when it comes to Duluth using a clever pun to sell Henley tees. But after living in the fast lane so long, Henley apparently know only one way to react when provoked–take it to the limit–one more time.

UPDATE: On January 22, the Judge denied Duluth’s request to throw the case out based on its so-called obviously-a-joke-defense. In a terse ruling, the Judge wrote: “Even assuming for the sake of argument that the transformative use test of Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) applies, Defendant has not established that its use of Plaintiff’s name – and the name of one of his band’s most famous songs – in its advertisement was sufficiently transformative on its face that a motion to dismiss should be granted.” Tranlation from legalese to plain-speak: Just because “Take it easy-don a henly” may be funny, doesn’t automatically mean Duluth is off the hook. To paraphraase “Take It Easy,” the Court did what Duluth didn’t want it to do: it said “maybe.”

QUOTE OF THE DAY: “It is the ability to take a joke, not make one, that proves you have a sense of humor.”
Max Eastman

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To Thy Selfie Be True: One Small Click For A Monkey, One Giant Leap For Copyright?

“You got yourself framed on the wall. And people come by and they look at your face. And they say it’s the fairest of all,” Your Picture by Camera Obscura

Monkeys, apes, and chimpanzees have had a long history in front of the camera on the silver screen and television. What would Tarzan have been without Cheeta? Reagan without Bonzo? Clint without Clyde? Charlton without his planet of them? And when it comes to TV, who can forget Peggy Cass, Jack Weston and their trio of adopted chimps on the 1961-62 series “The Hathaways?” Well, almost everyone. (Even I had a hard time remembering the premise of that show, which aired when I was 5. But it goes to show you–casting a non-human hominid in even a mediocre sitcom leaves a lasting impression.)

But a monkey behind the camera? Calling the shots, so to speak? Hard to imagine, despite the “infinite monkey theorem that posits “Give a thousand monkeys typewriters and infinite time and they will almost surely type Shakespeare’s plays.” But it’s actually happened, and it’s caused a copyright tussle that could be dubbed “Rumble in The Jungle II.”

Here’s the story: British wildlife photographer David Slater set off for a jungle shoot in Indonesia with thousands of dollars of equipment in tow. After setting up his gear, Slater walked away from his tripodded camera. As if on cue, a crested black macaque entered stage left and began snapping away. As described by Jay Caspian Kang in The New Yorker, “the result was hundreds of macaque selfies.” Most of the haphazard snaps were blurred. But the infinite monkey theorem prevailed, and one particularly affecting image–a headshot of a macaque sporting a goofy grin–went viral, to the delight of millions of viewers around the world looking for a respite from the grim news cycle and the fiasco of Bruce Jenner’s new hairstyle (which one pundit likened to Donald Trump’s morning pre-comb over mane.)

Everyone had a good laugh at the notion of a monkey selfie and the strangely compelling image it produced. Everyone, that is, except Slater.

He demanded that Wikimedia, which had posted to chimparrazzi’s handiwork, take down the offending snapshot, arguing that he, not, the monkey, owned the copyright. To Slater, a monkey pressing the shutter on cameras Slater lugged into the jungle is no different from an assistant pressing the button after Slater set everything up. But here, Slater had not held the camera or even composed the shot. The intermeddling monkey did.

Still, Slater has reason to be miffed. His plane ticket set him back a small fortune, not to mention the cost of his gear. Without his presence, the macaque would have been foraging for berries, not aping Richard Avedon. Yet as the images produced from his camera sweep the planet, Slater hasn’t earned a dime. In fact, this episode is costing him in legal fees to vindicate his position.

There’s one big problem for Slater, however. The U.S. copyright office backs the monkey! In a recent draft policy statement, the U.S. Copyright Office has clarified that it will not register works produced by plants, animals or “divine or supernatural beings.” Specifically tackling the flap between Slater and his meddlesome sidekick, the Copyright Office noted that it will refuse to register a claim if a human being did not create the work, and listed “a photograph taken by a monkey” and “a mural painted by an elephant” as examples of works that will not receive registration. And that policy jibes with the basic copyright principle that “she who presses the shutter owns the copyright.”

So it seems that, as so often has been captured on film for the movies and tv, a monkey and his hijinks have gotten the best of yet another homo sapien sap, once again proving the wisdom behind W.C. Field’s second most famous line “never work with children or animals.”

QUOTE OF THE DAY: “In the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed.”
Charles Darwin

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